Matter of Harbin Shareholders Litig.
Annotate this CaseDecided on August 19, 2011
Supreme Court, Suffolk County
In re Harbin Shareholders Litigation,
35327-10
JASPAN SCHLESINGER LLP
Liaison Counsel for Plaintiffs Norfolk County Retirement System, Yun and Gould and Class Liaison Counsel
300 Garden City Plaza
Garden City, New York 11530
LABATON SUCHAROW LLP
Counsel for Plaintiff Norfolk County Retirement System and Co-Lead Counsel for the Class
140 Broadway
New York, New York 10005
WOLF POPPER LLP
Counsel for Plaintiff Yun and Co-Lead Counsel for the Class
845 Third Avenue
New York, New York 10022
BROWER PIVEN
Counsel for Plaintiff Gould and Co-Lead Counsel for the Class 488 Madison Avenue, Eighth Floor
New York, New York 10022
LOEB & LOEB LLP
Attorneys for Defendant Harbin Electric, Inc.
345 Park Avenue
New York, New York 10154
MORITT, HOCK, HAMROFF & HOROWITZ, LLP
Attorneys for Defendant Harbin Electric, Inc.
400 Garden City Plaza
Garden City, New York 11530
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Attorneys for Defendant Tianfu Yang
Four Times Square
New York, New York 10036
Elizabeth H. Emerson, J.
Upon the following papers numbered 1 to 73 read on these motions to dismiss ; Notice of Motion and supporting papers 1-17; 43-64 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 18-34; 65 ; Replying Affidavits and supporting papers35-42; 66-73 ; it is,
ORDERED that these motions by the defendants Harbin Electric, Inc., and Tianfu Yang for an order dismissing the amended, consolidated class-action complaint is granted.
The defendant Harbin Electric, Inc. ("Harbin") is a Nevada corporation whose corporate headquarters are in Harbin, China. The defendant Tianfu Yang is Harbin's Chairman and Chief Executive Officer and the owner of approximately 31% of Harbin's outstanding stock. Yang is a Chinese citizen who resides in China. Harbin operates four manufacturing plants in China and none in the United States. In fact, Harbin does not maintain any facilities in the United States except for an office in Shoreham, New York, which is located in the home of its Secretary and Vice President of Finance and Investor Relations. Harbin does not have any officers, directors, or employees in the United States except for the aforementioned Secretary and Vice President of Finance and Investor Relations. Harbin's stock, however, is listed and traded on the NASDAQ stock exchange.
On or about October 11, 2010, Yang offered to purchase all of the outstanding shares of Harbin's common stock that he did not then own for $24.00 a share. On October 13, 2010, the first of five putative shareholder class actions was filed in Nevada state court seeking, inter alia, to enjoin the proposed sale on the ground that the share price was grossly inadequate. Two additional putative shareholder class actions were filed in Nevada federal court on October 13 and November 1, 2010, respectively. The first New York putative shareholder class action was filed October 15, 2010, and two more ensued. By an order of this court dated February 2, 2011, the three New York actions were consolidated in this action. An amended, consolidated class-action complaint was filed in this court on January 25, 2011, asserting causes of action against Yang for breach of fiduciary duty and against Harbin for aiding and abetting a breach of fiduciary [*2]duty. The five Nevada state court actions were also consolidated in a single action in the Clark County Business Court, and one of the Nevada federal court actions was subsequently discontinued. Harbin and Yang move to dismiss the amended, consolidated class action complaint filed in this action, inter alia, on the ground of forum non conviens.
When there is an action pending in another jurisdiction between the same parties for the same or substantially the same relief, a major concern, as a matter of comity, is to avoid the potential for conflicts that may result from rulings issued by courts of concurrent jurisdiction (see, White Light Prods. v On The Scene Prods., 231 AD2d 90, 93). Thus, the primary concern in this situation is not which court has jurisdiction or even which court should hear the dispute. The question is which court should defer, as a matter of comity, to the other in order to avoid vexatious litigation and duplication of effort with the attendant risk of divergent rulings on similar issues (Id. at 96).
CPLR 327(a) permits the court to stay or dismiss an action in the interest of
substantial justice when the court finds that the action should be heard in another forum. Under CPLR 327(a) and the common-law doctrine of forum non conveniens, the court may stay or dismiss an action when it determines that, although it has jurisdiction over the action, the action would be better adjudicated elsewhere (see, Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479). The burden is on the defendant to establish that the selection of New York as the forum will not best serve the ends of justice and the convenience of the parties (see, Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 74; Islamic Republic of Iran v Pahlavi, supra at 479; Globalvest Mgmt.Co. v Citibank, N.A., 7 Misc 3d 1023[A], *4). It is well established that, unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should not be disturbed (see, Waterways Ltd. v Barclays Bank, 174 AD2d 324, 327).
The New York courts consider and balance various competing factors when evaluating whether or not to retain jurisdiction over a particular action (see, Islamic Republic of Iran v Pahlavi, supra at 479). Although not every factor is necessarily articulated in every case, collectively, courts have considered and balanced the following factors: the existence of an adequate alternative forum, the situs of the underlying transaction, the residency of the parties, the state of incorporation, the potential hardship to the defendant, the location of documents, the location of a majority of the witnesses, and the burden on the New York courts (Berger v Scharf, 9 Misc 3d 1122[A] *3; Globalvest Mgmt.Co. v Citibank, N.A., supra at *4). The determination rests within the exercise of the court's sound discretion, and no one factor is controlling (see, Islamic Republic of Iran v Pahlavi, supra at 479).
The fact that Harbin is incorporated in Nevada weighs in favor of dismissal (see, Berger v Scharf, supra at *2). When an action involves the internal affairs of a foreign corporation, the state of incorporation has a paramount interest in hearing the claim (see, Sturman v Singer, 213 AD2d 324, 325). Dismissal in favor of the state of incorporation most often occurs when, as here, related actions have already been commenced in such state (see, Berger v Scharf, supra at *2, citing Sturman v Singer, supra; Hart v General Motors, 129 AD2d 179, 185). Like this [*3]action, the Nevada state court actions allege causes of action against Yang for breach of fiduciary duty and against Harbin for aiding and abetting a breach of fiduciary duty. The Nevada state court actions also allege causes of action against the other members of Harbin's board of directors for breach of fiduciary duty, and they have been consolidated into a single action in which the New York plaintiffs could intervene (see, Sturman v Singer, supra). Nevada is an adequate alternative forum, and the Clark County Business Court is capable of deciding the issues presented and granting appropriate relief. Since Harbin is a Nevada corporation, Nevada law applies to the plaintiffs' claims for breach of fiduciary duty (Solow v Stone, 994 F Supp 173, 177 [SDNY], affd 163 F3d 151). The applicability of foreign law is an important consideration in determining a forum-non-conviens motion and also weighs in favor of dismissal (Shin-Etsu Chemical Co. v ICICI Bank Ltd., 9 AD3d 171, 178).
The existence of a substantial nexus between the action and the State of New York weighs against dismissal on forum non conveniens grounds (see, Berger v Scharf, supra at *2). New York has an interest in protecting its citizens from the questionable acts of foreign corporations when the foreign corporation has significant contact with New York (see, Broida v Bancroft, 103 AD2d 88, 92; Berger v Scharf, supra at *3). A substantial nexus between New York and the action may arise based on factors such as the location of the defendant corporation's principal place of business in New York; the location of books and records in New York; the trading of the defendant corporation's stock on a stock exchange located in New York; the scheduling of stockholders' and directors' meetings in New York; the location of the majority of the defendant corporation's shareholders, officers, and directors in New York; and the defendant's frequent use of the New York courts (see, Berger v Scharf, supra at *3-*4).
The court finds that, contrary to the plaintiffs' contentions, a substantial nexus does not exist between this action and the State of New York. Although Harbin is listed on a stock exchange located here in New York, its principal place of business is in China, where all of its manufacturing and other operations are conducted. Harbin's physical presence in New York is limited to a home office maintained by its Secretary and Vice President of Finance and Investor Relations. None of its other officers or directors are located in New York. It does not have any employees here, and its shareholders appear to be scattered throughout the United States. The record does not reflect that Harbin keeps books and records in New York or that any of its stockholders' or directors' meetings were ever held here. While the plaintiffs note that Harbin's only nexus to Nevada is its incorporation there, that fact weighs heavily in favor of dismissal (see, Sturman v Singer, supra).
Finally, the Nevada action is first in time. It is still the general rule in New York that the court which has first taken jurisdiction is the one in which the matter should be determined, and it is a violation of the rules of comity to interfere (see, White Light Prods. v On The Scene Prods., supra at 96-99; Topps Co., Inc. Shareholder Litigation, 19 Misc 3d 1103[A], *3). Special circumstances warrant deviation from the general rule when the first-filed action is vexatious, oppressive, or instituted by duplicity or to obtain some unjust or inequitable advantage (White Light Prods. v On The Scene Prods., supra at 96; Topps Co., Inc. Shareholder [*4]Litigation, supra at *3). There is no evidence in the record, nor do the plaintiffs contend, that such special circumstances apply here.
The court finds that, on balance, the various factors weigh in favor of dismissal. Given Harbin's incorporation in Nevada, the pending action there involving the same or similar causes of action, and Harbin's lack of a substantial nexus with the State of New York, the ends of justice and the convenience of the parties would best be served if the litigation were to proceed in Nevada. Under these circumstances, the court defers as a matter of comity to Nevada. Accordingly, the amended, consolidated class action complaint is dismissed.
Dated:August 19, 2011
J.S.C.
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